Human Rights, Identity and the Legal Regulation of Dress

Human Rights, Identity and the Legal Regulation of Dress

Article excerpt

INTRODUCTION

Law, particularly anti-discrimination or equalities and human rights law, is supposed to protect our fundamental freedoms in a liberal democratic system. Such freedoms include rights to religious and other forms of expression protected in various human rights laws. In European human rights law, such rights include those set out in Articles 8 to 11 of the European Convention on Human Rights (ECHR) which allow elements of who we are, our identities,--including our religious beliefs--to be visible to others. However, these rights are restricted and qualified by the rights and freedoms of these others. In liberal democracies, the contradiction between the rights holder as an individual, bounded 'atomistic' person, yet somehow to be balanced with others' rights is most obviously seen in these qualified rights of respect for one's private life, free speech, religious expression and associating with others. In this paper, these issues are critically explored, particularly by reference to the European Court of Human Rights' (ECtHR) jurisprudence but sometimes from other international and national human rights courts, to see if, and if so, how, such interpretations lead to exclusion, lack of recognition and silencing of those whose dress is restricted. Will such interpretations lead to the shutting down of debate and unduly restrict who we are allowed to be?

Some aspects of the expression of our identities have had success under human rights law, but many have not. The difficulty appears to be caused by the requirement to balance individual rights with the rights of others, and who holds the power in these situations. Society has become more accepting of some types of appearance as a reflection of who we 'really' or 'truly' are. These cover the grounds for discrimination commonly found in anti-discrimination law including race, sex, religion and disability. However, these focus on seemingly fixed and immutable characteristics as grounds of action. A preferable central requirement of discrimination would be, as Sandra Fredman argues, that "a person or group has been discriminated against when a legislative distinction makes them feel that they are less worthy of recognition or value as human beings, as members of society". (1) Yet even for the accepted grounds, legal success can be elusive. Legally justifiable different treatment can be explained through 'grooming policies' in the workplace, or the supposed 'unreasonable' and 'ostentatious' style of appearance. This can be seen in case law concerning hairstyles. For example, 'the dismissal was caused by braids, or dreadlocks or finger waves', not race; 2 or the problem is a full length covering like a jilbab or a face veil seen as, amongst other things, too 'ostentatious' or 'unreasonable', and not religious (or racial or sex) discrimination. (3)

In totalitarian North Korea, there are reportedly 28 state permissible, approved hairstyles. (4) One would not expect such oppression on personal appearance in liberal democracies in Europe. Somewhat disappointingly then, in certain European countries, a woman is not allowed to wear a headscarf on her hair in public sector work; or a full face veil walking down the street in France and Belgium. (5) People are told, through legal penalty, that they cannot look a particular way. Many argue that, if they do dress this way, their human rights are protected because they are 'free' to leave their employment or stay indoors. In cases that purport to be based on a 'choice' over one's appearance, such as a hairstyle or an item of clothing, human rights law is often of little assistance. This shows the potential for disconnect between how we perceive ourselves and how others perceive us. Other people's experience of us through this manifestation leads to their, often inaccurate, judgements about us. I argue that if the law is interpreted this way, this can constitute a misrecognition and disrespect of the person affected. …